UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GRANT K. BEATTIE, Plaintiff-Appellant,

v. STEVEN J SMITH, a tr ibal police officer for the Prairie Band Potawatomi Tribal Police Department, sued in his individual and official capacity; RYAN BAUER, a tribal police officer for the Prairie Band Potawatomi Tribal Police Department, sued in his individual and official capacity; MICHAEL K. BOSWELL, a Tribal Chief of Po lice for the Prairie Band Potawatomi Tribal Police Department, sued in his individual and official capacity; BETH JAMES; MARIA HUSKE; JEREMY RODECAP; PRAIRIE BAND POTAWATOMI NATION; PRAIRIE BAND POTWATOMI TRIBAL POLICE DEPARTMENT, Defendants-Appellees. No. 13-3053 (D.C. No. 2:12-CV-02596-JTM-JPO) (D. Kan.) FILED United States Court of Appeals Tenth Circuit 

### November 13, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - ORDER AND JUDGMENT *

Before MATHESON , Circuit Judge, PORFILIO , Senior Circuit Judge, and O’BRIEN , Circuit Judge.

Grant K. Beattie was arrested at a resort operated by the Prairie Band Potawatomi Nation (PBPN or Tribe) and char ged with lewd and lascivious behavior and disorderly conduct. He was tried and acquitted in stat e court. He then brought this civil rights action against the PBPN, its Tribal Police Department, and certain tribal police officers and re sort security personnel, asse rting claims under 42 U.S.C. § 1983 and Kansas state law. The tribal entities moved to dismis s his complaint, and the individual defendants move d for judgment on the pleadings. The district court granted both motions and closed the case. Mr. Beattie app eals. We have jurisdiction under 28 U.S.C. § 1291.

* After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.- 3 - I. BACKGROUND
A. Factual Allegations in the Complaint Mr. Beattie’s comp laint recites that on Septembe r 10, 2011, he and his wife were guests at the Prairie Band Casino & Resort (Resort), located on the PBPN’s reservation in Kansas. That evening, his wife planned to go shopping, and he planned to watch a football game in the room. Both decided to bathe first. After his wife had finished bathing and was getting dressed, Mr. Beattie stripped down to his underwear in preparation for hi s bath. Before entering the t ub, he walked his wife to the patio door in their hotel room. Resort guests commonly enter and leav e through their rooms’ patio door to access the hotel’s central cour tyard. The glass patio doors and windows of the guest rooms are covered by two curtains, one made of solid fabric and the other of sheer material that permits limited visibility. When Mr . Beattie’s wife left the room, the solid curtain was closed over the room’s window and the sheer curtain was closed over both the window and the patio door. Mr. Beattie’s wife pulled th e sheer curtain out of th e way and left through the patio door. He kissed her goodbye, cl osed the door, and watched her from the doorway as she walked across the courtyard. With his left hand, Mr. Beattie held open the top portion of the sheer curtain so that he coul d observe his wife crossing the courtyard. He used his right hand to hold the lower portion of the sheer curtain closed, to avoid being s een in his underwear.- 4 - Ms. Robinson, a hotel guest who was in the courtyard area with her family, reported to a hotel clerk th at she had “witnessed a ma n looking out the window of [Mr. Beattie’s] room and mast urbating.” App. at 22 ¶ 54. Defendant Maria Huske, a Resort security officer, was dispatched to meet with Ms. Robi nson. Ms. Robinson reported to her that “she saw [a] guest in [Mr. Beattie’s] hotel room open his window shade [and] wrap it around his neck while he actively masturbated.” Id. ¶ 56 (quoting Huske report). Ms. Huske observed Mr. Beattie’s room , saw him pull back the shade, and noted that he was wearing a black-t shir t that reached his mid-thigh level. Mr. Beattie was not wearing pants, and his t-shirt was suff iciently long that Ms. Huske could not tell whether he was wearing underwear. In later documenting the incident, she did not report observi ng him engaged in a ny lewd behavior. Ms. Huske reported these events to her supervisor, defendant Jeremy Rodecap. Mr. Rodecap instructed the Re sort’s security dispatcher to contact the Tribal Police Department, which dispatched defendant offi cers Stephen J. Smith and Ryan Bauer to the scene. Officer Bauer c ontacted Ms. Robinson after he arrived at the Resort, but neither officer interviewed Ms . Robinson until after they ha d arrested Mr. Beattie. At the Resort, Officer Smith spoke with Ms. Huske, who allegedly told him that “She seen [sic] the ma le standing in the window wit hout any pants on and he was- 5 - masturbating.” Id. at 23 ¶ 66 (quoting Smith report). 1 Ms. Huske informed Officer Smith where he could find Ms. Robinson, but he did not interview her. Instead, he joined Officer Bauer at the patio door to Mr. Beattie’s room. Mr. Beattie noticed the offi cers standing outside his door, so he opened it and asked them what was going on. The offi cers requested permission to come inside and talk to him. He agreed . Ms. Huske and an additional Resort security officer also entered the room. After Officer Smith obtained Mr. Beattie’s driver’s license, Officer Bauer ran a criminal history check on Mr. Beattie, which showed no prior reported criminal history or incidents. Officer Smith interrogated Mr. Beattie, who denied Ms. Robinson’s allegations. Officer Bauer took Mr. Beattie’s picture with his camera phone, then left the room. He returned after a moment, pres umably after having shown the camera phone picture to either Ms. Robins on or Ms. Huske for identif ication purposes, and reported “Yup that’s him.” Id. at 25 ¶ 94. Officer Smith then asked Resort security officer Beth James whether she wanted to pres s charges. She responded, “Under the circumstances, yes.” Id. ¶ 96. Officer Smith th en read Mr. Beattie his Miranda rights, arrested him without a warrant , and transported him to jail.

1 It is not clear from the complaint whether “She” re fers to Ms. Robinson or Ms. Huske. If Ms. Huske, this would seve rely undercut Mr. Beattie’s claim that the officers improperly relied on “limited, second-hand information from . . . [Ms.] Huske.” Aplt. Opening Br. at 25. Read in the light most favorable to Mr. Beattie, we will assume “S he” refers to Ms. Robinson.- 6 - At the time of arrest, Officer Smith purportedly told Mr. Beattie, “You are being accused by two witnesses one a guest and one a hotel employee that you were standing at the glass with a towel around y ou between the curtain and the glass fully exposing yourself [sic ] and masturbating.” Id. at 26 ¶ 105. In response to Mr. Beattie’s denials, Offi cer Smith asserted that “t wo separate people at two different times advise[d that] he was doing such activity.” Id. at 27 ¶ 118 (internal quotation marks omitted). Officer Smith al so told Mr. Beattie that he was being charged with disorderly c onduct because “anytime peopl e are believed by [tribal police] to violate [the Kansas lewd and lascivious behavior statute] the [Tribal Police Department] always includes an additional charge for violating [the disorderly conduct statute].” Id. at 28 ¶ 131. Officer Smith was at the scene for a total of nine minutes. A criminal complaint was eventually issued char ging Mr. Beattie with a misdemeanor violation of Kansas Stat. A nn. § 21-5513(a)(2) (lewd and lascivious behavior) and with violati ng § 21-6203(a)(3) (disorderly conduct). He was tried and found not guilty of both charges.
B. District Court Proceeding s and Issues on Appeal Mr. Beattie’s federal court complaint asserted eight causes of action against the defendants, including § 1983 claims agai nst the officers for ar resting him without- 7 - probable cause or exigent circumstances in violation of the Fourth Amendment. 2 The district court dismissed th e § 1983 claims against the officers, concluding that Mr. Beattie failed to state a claim and that the officers were entitled to qualified immunity. It dismissed the state-law claims against th e individuals because those claims were subject to the discretionary f unction exception in the Kansas Tort Claims Act (KTCA). It dismissed the claims ag ainst the Tribal Defendants because the Tribal Police Department is not a jural entity a nd because Mr. Beattie failed to plead a sufficient claim for vicari ous liability against either th e Tribe or the Tribal Police Department. On appeal, Mr. Beattie ha s abandoned all of his cl aims except for his § 1983 claims against Officers Smith and Bauer; his Kansas state-la w claims for false arrest/false imprisonment a nd malicious prosecution agains t the officers and Resort security employees Beth James, Maria Huske, and Jeremy Rodecap; and his “vicarious liability claims against the Tribal Defendants. ” Aplt. Opening Br. at 16.
II. DISCUSSION “We review de novo the district court’ s granting of a motion to dismiss under Federal Rule of Civi l Procedure 12(b)(6) , ” Slater v. A.G. Edwards & Sons, Inc. , 719 F.3d 1190, 1196 (10th Ci r. 2013) (internal quotati on marks omitted), including

2 His complaint included § 1983 claims based on “summary punishment and denial of due process,” false arrest, ma licious prosecution, “violative processes, procedures, practices, and cu stoms”; and state-law claims for false arrest/false imprisonment, malicious prosecu tion, negligent supervision, and negligent training.- 8 - the grant of a motion to dismiss based on qualified immunity.” Weise v. Casper , 593 F.3d 1163, 1166 (10th Cir. 2010). “To defeat a moti on to dismiss, a complaint must plead facts suffici ent to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “We review a district court’s grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Colony Ins. Co. v. Burke , 698 F.3d 1222, 1228 (10th Cir. 2012) (internal quotation marks omitted). “[W]e accept all fa cts pleaded by the non-moving party as true and grant all reasonable inferences from the pl eadings in favor of the same.” Id. (internal quotation marks omitted). “A motion for judgment on the pleadings should not be granted unless the moving party has clearly es tablished that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).
A. Claims Against Office rs Smith and Bauer
1. Fourth Amendment § 1983 Claim The district court dismi ssed the § 1983 claims agai nst the officers both for failure to state a claim and because the officers were en titled to qualified immunity. We affirm the dismissal beca use the officers were entitle d to qualified immunity. To survive a motion to dismiss for qualified immunity, a plainti ff’s complaint must allege facts sufficient to show that the defendants plau sibly violated his federal rights, and that those rights were clearly esta blished at the time. See Robbins v.- 9 - Oklahoma , 519 F.3d 1242, 1249 (10t h Cir. 2008). Once defendants have asserted a qualified-immunity defense, it is the plai ntiff’s burden to show, “by reference to cases from the Supreme Court, the Tenth Circuit, or th e weight of authority from other circuits” that the right allegedly violated was clearly established at the time of the conduct at issue. Archuleta v. Wagner , 523 F.3d 1278, 1283 (10th Cir. 2008).

a. Probable Cause and Qualified Immunity Mr. Beattie contends that the officers lacked probable cause to arrest him. Although we conclude that Mr . Beattie’s complaint states a plausible lack of probable cause claim, he fails to show that the officers viol ated clearly established law. i. Violation of a Constitutional Right We begin by asking whether the complain t plausibly alleges a violation of a constitutional right. We ask whether, under the facts allege d, an objectively reasonable officer could have c oncluded that there were suffi cient facts at the time of the arrest to supply probable cause. See Cortez v. McCauley , 478 F.3d 1108, 1116 (10th Cir. 2007) (en banc) (s tating objective test for pr obable cause). If not, the arrest was unlawful. “Proba ble cause is based on the tota lity of the circumstances, and requires reasonably trustw orthy information that woul d lead a reasonable officer to believe that the person about to be arre sted has committed or is about to commit a crime.” Id. The officers assert they had probable cause to arrest Mr. Beattie based on Ms. Huske’s statements to O fficer Smith. To defeat qua lified immunity Mr. Beattie- 10 - must show that these st atements “did not constitu te reasonably trustworthy information sufficient to lead a prudent police officer to conclude” that Mr. Beattie committed the charged crimes. Romero v. Fay , 45 F.3d 1472, 1476 (10th Cir. 1995). In particular, he must show that “the in formation known to [the officers] did not establish probable cause.” Id. To meet his burden, Mr. Beattie ar gues the officers relied on “limited, second-hand information from [Ms.] Huske.” Aplt. Opening Br. at 25. They thereby impermissibly delegated to a security guard their duty to investigate his alleged crime and to make an independent probable cau se determination. Specifically, he complains that the o fficers failed to interview Ms. Robinson or any other potential witnesses who were readily available at the scene. We have held that “the probable cause standard of the Fourth Amendment requires officers to reasonabl y interview witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crim e has been committed at all before invoking the power of warra ntless arrest and detention.” Cortez , 478 F.3d at 1117 (internal quotation marks omitted). The question here is whether it was reasonable for Officer Smith to accept Ms. Huske’s report of her conversation with Ms. Robinson without talking personally to Ms. Robinson or to anyone else who might have been a firsthand witness to the events. The duty to investigate is subject to a standard of reasonableness. See id. Mr. Beattie’s complaint doe s not assert any specific facts known to the officers at the- 11 - time of arrest that would have called Ms. Husk e’s or Ms. Robinson’s credibility into question. Nevertheless , he does allege that the of ficers failed to interview Ms. Robinson, a readily available eyewitn ess whose credibility was crucial to the case against Mr. Beattie, before arresting him. Accepting the complaint’s allegations as true and understanding the a lleged facts in the lights most favorable to Mr. Beattie, we are unable to say that Mr. Beattie’s comp laint fails to allege facts sufficient to show that the defendants plausibly violated his Fourth Amendment rights. But to say that the complaint alleges a vi olation of a clearly establishe d right would go too far. ii. Clearly Established Law Even if the reasonableness of the officers ’ investigation is s ubject to dispute, the officers were entitled to qualified im munity on the second prong of the inquiry: whether Mr. Beattie’s comp laint pleads facts showing they violated clearly established law. “Qualifie d immunity gives government officials breathing room to make reasonable but mistaken judgments, a nd protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims , 81 U.S.L.W. 3600, 2013 WL 5878007, at *2 (U.S. Nov. 4, 2013) (per curiam) (internal quotation marks omitted). “We do not require a case directly on point befo re concluding that the law is clearly establishe d, but existing precedent must ha ve placed the statutory or constitutional question beyond debate.” Id. (internal quotation marks omitted). The cases Mr. Beattie cites do not clearly es tablish a duty to interview the alleged eyewitness under circumstances comparab le to those in this case.- 12 - Mr. Beattie relies on Baptiste v. J.C. Penney Co. , 147 F.3d 1252 (10th Cir. 1998). There we denied qualified immunity to officers who arrested the plaintiff for shoplifting after they had viewed a videot ape of the incident that supported the plaintiff’s story that she ha d done no such thing. Unde r those circumstances, “[i]t was . . . not reasonable for the officers to rely on the security guards’ allegations” that the plaintiff had stol en a ring from the store. Id. at 1257. The incident “was memorialized in its entirety on the videot ape,” which the officers had viewed and which should have exculp ated the plaintiff. Id. Here, by contrast, no such exculpatory record allegedly existed th at would have cast doubt on Ms. Huske’s report to the officers. Nor does Cortez v. McCauley clearly establish a duty to interview Ms. Robinson. In that case, officers responded to a telephone call from a nurse stating that a woman had brought her daughte r to the hospital asse rting that the child had complained that her babysitter’ s boyfriend had molested her. Cortez , 478 F.3d at 1113 (internal quotation mark s omitted). Without (1) interviewing the girl, her mother, the nurse, or the attending physicia n; (2) inspecting the girl’s clothing for signs of sexual assault; or (3) waiting for a preliminary report from the doctor, the officers arrested the “b oyfriend” (actually the babysitter’s husband). Id. at 1117. The hospital found no evidence of molestation, and the child’s mother later admitted she had recently argued with the plaintiffs over child care.- 13 - We held in Cortez that “it was unreasonable for th e officers to rely on the nurse’s double-hearsay statement about what the girl said, when they could have interviewed the girl or her mother directly.” Id. at 1119 n.12. Whether viewed as a case where more pre-arrest investigation was needed because the officers had insufficient information, or as one invol ving inadequate corroboration, “what the officers had fell short of reasonably trustw orthy information indicating that a crime had been committed by [the husband-plaintiff].” Id. at 1117. Here, by contrast, no such corroborative expert advice or physi cal evidence was reasona bly available, the eyewitness was not a potentially untrustworthy two-year-old child, and Officer Smith spoke to Ms. Huske rather th an simply relying on information relayed by a telephone call. Also unavailing are two other Tenth Circui t cases that Mr. Beattie mentions in this brief: Romero , and Lusby v. T.G. & Y. Stores, Inc. , 749 F.2d 1423 (10th Cir. 1984), vacated on other grounds , 474 U.S. 805 (1985). In Romero , police officers arrested the plaintiff without a warrant and without interv iewing his alibi witnesses. Although we stated the general rule that “t he Fourth Amendment requires officers to reasonably interview witnesses r eadily available at the scene,” Romero , 45 F.3d at 1476, we noted that the plaintiff did not c ontend that the defendant officer “failed to investigate fundamental evid ence at the crime scene,” id. at 1477. We concluded the officer should therefore have been gran ted qualified immunity. Here, as in Romero , the arresting officer reasonably “concluded based on the facts and information known- 14 - to him that probable cause existed to arrest [the plaintiff].” Id. at 1478. Romero does not clearly establish law in s upport of Mr. Beattie’s claim.
In Lusby , the plaintiffs were customers at a T.G. & Y. store. They were arrested after one of them purchased a pa ir of sunglasses, th en re-entered the checkout line to purchase some hairspray. An assistant manager at the store witnessed only the second purchase, and summoned an off-duty policeman employed by T.G. & Y. as a plaincloth es security officer to inve stigate whether the sunglasses had been shoplifted. The s ecurity officer stopped the customer who purchased the sunglasses and asked him for a receipt. The customer explai ned that he had paid for the sunglasses but had lost the receipt. Th e security officer th en informed him he was under arrest for shoplifting. Police offi cers who had arrived at the scene took the plaintiffs into custody. Afte r the plaintiffs were arrested and transported to jail, the cashier informed managers at the store that the cust omer had paid her for the sunglasses. We agreed with plaintiffs that the officers’ arrest, “bas ed solely on [the security officer’s] accusati ons and without any independ ent police investigation to ascertain probable cause, suppo rt[ed] the jury’s finding of a civil rights violation.” Lusby , 749 F.2d at 1434. The facts in Lusby differ from those in this case. In Lusby , it should have been obvious that before the customer was arrested, someone needed to interview the cashier, who was likely the only person on the scene with actual knowledge concerning whether the customer had take n the sunglasses without paying for them—- 15 - an essential element of the cr ime. Even the security o fficer had not interviewed the cashier before speaking to the offi cers. Here, by contrast, Ms. Huske had interviewed Ms. Robinson, an eyewitness who claimed to have first-hand knowledge of facts required to supply probable cause to believe th at Mr. Beattie had committed a crime. Finally, Lundstrom v. Romero , 616 F.3d 1108 (10th Cir. 2010), does not support Mr. Beattie’s argument. In that case, o fficers arrested a ma le suspect after a witness had reported hearing a female yelli ng at a child. Before the plaintiff was arrested, the witness who heard the yelling provided further information that undermined probable cause, and no child was found at the residence. 3 Here, no such

3 Mr. Beattie’s other arguments concer ning this Fourth Amendment claim fail under our qualified immunity analysis: First, Mr. Beattie argues that the offi cers unconstitutionally arrested him for disorderly conduct—the charge they allegedl y “tacked on” to the lewd and lascivious behavior charge. Even if probable cause di d not exist to arrest and charge him with disorderly conduct, however, probable cause to arrest Mr. Beattie for lewd and lascivious behavior w ould have been sufficient to just ify the arrest. “[T]he probable cause inquiry . . . requires merely that officers had re ason to believe that a crime— any crime—occurred.” United States v. Turner , 553 F.3d 1337, 1345 (10th Cir. 2009). “An arrested individual is no more seized when he is arrested on three grounds rather than one; and so long as there is a reasonable basis for the arrest, the seizure is justified on that basis even if any other grou nd cited for the arrest was flawed.” Holmes v. Village of Hoffman Estates , 511 F.3d 673, 682 (7th Cir. 2007). Because no clearly-est ablished law informed the officers that th ey lacked probable cause to arrest Mr. Beattie for lewd and lascivious be havior, his claim regarding disorderly conduct fails. Second, he argues that Officer Smith’s decision to seek a misdemeanor charge under Kan. Stat. Ann. § 21-5513, after he had previously arrested him for a felony (continued)- 16 - information undermined probable cause, there was no ambiguity concerning the suspect, and Mr. Beattie was lo cated in his room where th e Ms. Huske said he would be found. In short, Mr. Beattie has failed to show that the offi cers violated clearly established law based on l ack of probable cause. b. Exigent Circumstances and Qualified Immunity Mr. Beattie contends that in addition to probable cause, the officers needed either a warrant or exigent ci rcumstances to enter his hotel room to arrest him there. 4 In a public place, officers may arrest an individual without a warrant or exigent circumstances, so long as they have probable cause to make the arrest. United States
v. Watson , 423 U.S. 411, 423–24 (1976). But if officers s eek to arrest an individual

violation of the statute, suggests the ar rest was unsupported by probable cause. The only difference between a felony and a misdem eanor violation of th e statute concerns whether a person under the age of 16 was present. See Kan. Stat. Ann. § 21-5513(b). According to Mr. Bea ttie’s complaint, Offi cer Smith told him af ter the arrest that “since there were chil dren in the area, it will be a fe lony offense.” Aplt. App. at 129 ¶ 129. The complaint does not allege that Officer Smith’s statement concerning the presence of children was false. Given this, Mr. Beattie fail s to show that the arrest for a felony, although only a misdemeanor was ultimately charged, violated his constitutional rights. Finally, Mr. Beattie argues that Officer Smith’s asking Ms. James, a member of the tribal security staf f, whether she wanted to press charges delegated the probable cause determination to Ms. James. Whether Ms. James wanted to press charges has nothing to do with probable cau se, and the argument therefore fails to state a plausible claim. See Slater, 719 F.3d at 1196 (stating pl ausibility standard).

4 “A motel room may be considered a ‘d welling’ for purposes of the validity of a warrantless arrest.” United States v. Wicks , 995 F.2d 964, 969 (10th Cir. 1993).- 17 - within his dwelling, they must also have th e right to enter the hom e to effectuate the

arrest. See Payton v. New York , 445 U.S. 573, 590 (1980). Officers may gain a right of entry in se veral ways. First, they may obtain an

arrest warrant . Id. Absent a warrant, the officers may enter a dwelling if they have probable cause for the arrest and exigent circumstances exis t to justify the entry. Kirk v. Louisiana , 536 U.S. 635, 638 (2002) (“[P]olice officers need e ither a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.”). Finally, even if the officers ha ve neither a warrant, nor probable cause and exigent circumstances, “[a]n individual may also consent to a wa rrantless intrusion into his home.” Hogan v. Cunningham , 722 F.3d 725, 732 (5th Cir. 2013). Here, it is undisputed th at Mr. Beattie voluntarily permitted the officers to enter his room. Mr. Beattie points to no clearly-established law holding that where valid consent has been given to the office r’s entry into the su spect’s dwelling, the officer must also show that probable cause and exigent circumstances justified the arrest that took place there. No r have we found such authority. See, e.g., United States v. Cruz-Mendez , 467 F.3d 1260, 1265 (10th Ci r. 2006) (“Consent can justify an entry into a home, regardless of whether there is probable cause.”); id. at 1269 (“ Payton holds only that “the Fourth Amendm ent . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arre st. [Where] the officers’ entry . . . was consensual, Payton does not apply.”). Cf. United States v. Morris , 977 F.2d 677, 688 (1st Cir. 1992)- 18 - (“[A] determination of whether probable cause or exigent circumstances existed will be unnecessary if a defendant voluntarily c onsents to [a warran tless] search.”). Therefore, the officers were entitled to qualified immun ity as to this portion of Mr. Beattie’s claim as well.
2. State Law Claims Mr. Beattie also argue s that the district court e rred in determining that his state-law claims against the officers we re barred by the KTCA’s discretionary function exception. See Kan. Stat. Ann. § 75-6104(e). He contends th at Kansas law “does not grant officers a disc retionary right to violate esta blished law, i.e. the Fourth Amendment,” Aplt. Opening Br. at 29, and that because the officers “lacked probable cause and exigent circumstance s . . . they were afforded no discretion to execute a warrantless arrest, or to vi olate the Fourth Amendment,” id. The alleged Fourth Amendment violati on here involves the adequacy of the officers’ investigation before making an arrest. Unde r Kansas case law, the method of conducting an investigation falls within the scope of an o fficer’s discretion. See Soto v. City of Bonner Springs , 238 P.3d 278, 286 (Kan. 2010) (citing cases describing investigatory proced ures, such as “the precise steps to be taken . . . to verify personally identifying informat ion,” the “manner of conducting an investigation” and the “people to whom so cial workers converse in supervising child placements” as discretionary functions). Th e officers’ decision to arrest Mr. Beattie was a discretionary decision because it i nvolved “personal deliber ation, decision and- 19 - judgment.” Id. at 287 (quoting Davis v. Klevenhagen , 971 S.W.2d 111, 117 (Tex. App. 1998)). “An officer’s decision regarding ‘if, how, and when to arrest a person’ is discretionary.” Id. (quoting Davis , 971 S.W.2d at 117-18 (citation and emphasis omitted)). “Likew ise, a police officer is e ngaged in a discretionary function in determining ‘how to investigate, and to what extent to investigate before seeking a warrant.’” Id. (quoting Davis , 971 S.W.2d at 118 (citation and emphasis omitted)). Mr. Beattie does not allege that the officers’ conduct wa s “wanton” such that it would fall outside the discre tionary function exception. See id. at 284-85 (discussing “wanton conduct” exception). Nor, as we ha ve seen, did the offi cers’ actions violate clearly-established Fourth Amendment law. The district cour t properly dismissed this state-law claim based on the di scretionary function exception. B. State-Law Claims Against Ms. Huske, Ms. James, and Mr. Rodecap Mr. Beattie argues that the district court incorrectly dismissed his false arrest and malicious prosecution claims agai nst the Resort’s security personnel. 5 In ruling on these claims, the district court stated as follows: 6

5 Although Mr. Beattie claims to have preserved his state-law claims against Officers Smith and Bauer, see Aplt. Opening Br. at 36, his argument concerning liability under the KTCA addresses only hi s claims against th e Resort security personnel, see id. at 30-32. His sole argument c oncerning the KTCA claims against the officers concerns the di scretionary function exception, which we have discussed, supra . 6 The district court’s anal ysis seems to have been directed primarily at the personal participation requirement for the § 1983 constitutional claims against the (continued)- 20 - Here, the allegations show only that [Ms.] Huske made a report, based upon her interview with [Ms.] Robinson , and that [Ms.] James later told the Tribal Police where they could find [Mr.] Beattie. They were present while the Tribal Police offi cers interrogated [Mr.] Beattie, and decided to press charges, again base d on the word of one of their other guests. Even assuming that the Tribal Police should have conducted a better investigation, the plaintiff ha s failed to show how these hotel employees are legally responsible for th e actions of the Tribal Police, or that the hotel employees had a duty to intervene in the police investigation. Aplt. App. at 191.
1. False Arrest With regard to his fals e arrest claim, Mr. Beatti e argues that he was only required to allege that the Re sort security employees “instig ated the arrest , assisted in it, or by some means direct ed or encouraged it.” Ap lt. Opening Br. at 30 (citing Thurman v. Cundiff , 580 P.2d 893 (Kan. App. 1978)). But Kansas law provides that “the mere giving of informa tion to a peace officer tending to show that a crime has been committed is not enough to render the informer guilty of resulting false imprisonment by the officer,” and “[o]ne is not liable for false arre st where he merely states to a peace officer hi s knowledge of a supposed o ffense and the officer makes the arrest entirely upon his own judgment and discretion.” Thurman , 580 P.2d at 898. Mr. Beattie attempts to show that the security personnel were not mere passive reporters of an alleged crime but active facilitators of his arrest. Resort security personnel. Mr . Beattie addresses the analysis specifi cally as it relates to the state-law claims. We will consid er his argument in this context.- 21 - First, he argues that “Huske, Rodecap , and James [assisted in] criminal proceedings against Beattie based on false and/or material ly omitted information in their reports .” Aplt. Opening Br. at 31 (emphasis added). But of the three security personnel, only Ms. Huske is al leged to have filed a repor t concerning the incident. And her written report a nd video were prepared after the arrest. Probable cause is assessed at the time of the arrest. See, e.g., Courtney v. Okla. ex rel. Dep’t of Public Safety , 722 F.3d 1216, 1225 (10th Cir. 2013). A report that came afterwards could not have influenced the office rs to arrest Mr. Beattie. Second, Mr. Beattie claims that the security personnel were “involved in creating the 9-minute ‘investigation’ leading to [his] arrest,” Aplt. Opening Br. at 31, suggesting that they caused an abbreviated investigation. The complaint fails to allege that the security personnel encouraged the o fficers to cut short their questioning, caused them to not interview ava ilable witnesses, or urged them to hurry up and arrest Mr. Beattie. In short, Mr . Beattie’s allegation is conclusory and unsupported. Third, Mr. Beattie asserts that the se curity officers “detained and interrogated [Mr.] Beattie in his hotel room.” Id. Although the complaint does state that Mr. Beattie permitted Ms. Huske and an unnamed “additional male security employee” to enter his room, Aplt. App. at 24 ¶ 73, there is no allegation that hotel security personnel detained Mr. B eattie or interrogated him there.- 22 - Fourth, Mr. Beattie asserts that Mr. Rodecap “initiated contact with the Tribal PD.” Aplt. Opening Br. at 31. Merely contacting the poli ce to investigate an alleged crime does not in itself constitute assistance in a wrongful arrest. Thurman , 580 P.2d at 898. Finally, Mr. Beattie a sserts that Ms. “James expressly requested [his] arrest.” Aplt. Opening Br. at 31. According to the complaint, Ms. James merely responded to Officer Smith’s inquiry concerning whether the Resort wished to press charges. Officer Smith did not ask Ms. James for he r opinion nor did she offer one on whether probable cause existed, whether Mr. Beatti e had committed the acts alleged against him, or whether he should be arrested. Notwithstanding Offi cer Smith’s inquiry about pressing charges, Mr. Beattie fails to show that Officer Smith did not exercise his own discretion in determining whether probable cause existed for the arrest. See Thurman , 580 P.2d at 898.
2. Malicious Prosecution Turning to his malicious prosecution claim against the Re sort’s security personnel, Mr. Beattie argues that after he was arrested, Ms. Huske, Ms. James and Mr. Rodecap possessed significant factua l information that tended to discredit Ms. Robinson’s story. The only specific ex ample mentioned in Mr. Beattie’s brief and drawn from his complaint concerns info rmation that Ms. Robinson told Officer Bauer when he interviewed her after the arrest. This inform ation was allegedly- 23 - inconsistent with what Ms. Huske told Officer Bauer afte r the arrest, or put in her report. Although the complaint alleges numerous inconsistencies in the reports filed by the officers and Ms. Huske, there is no sp ecific allegation that Ms. Huske lied to Officer Bauer; in fact, Mr. Beattie uses Ms. Huske’s statements to call Ms. Robinson’s story into question. Nor do es he allege that Ms. Huske deliberately concealed post-arrest inform ation from the offi cers. The only wrongdoing he now asserts by Ms. Huske or any Resort security person is that “[d]esp ite security’s access to [the inconsistent] information, not one employee ever requested to drop the criminal case.” Aplt. Opening Br. at 32. This is in sufficient to state a claim for malicious prosecution against the Resort’s security personnel. See Lindenman v. Umscheid , 875 P.2d 964, 974 (Kan. 1994) (set ting forth elements of malicious prosecution under Kansas law).
C. Vicarious Liability Claim Under th e KTCA Against the Tribal Entities As we have seen, Mr. Beattie has failed to allege an actionable “negligent or wrongful act or omission” by any employee of the Tribal Entities acting within the scope of his or her employment. See Kan. Stat. Ann. § 75-61 03(a) (stating standard for vicarious liability under KTCA). Theref ore, any vicarious lia bility claim against- 24 - the Tribe and its police depa rtment, to the extent as serted in his complaint, 7 must fail as well.
III. CONCLUSION The judgment of the dist rict court is affirmed. ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge

7 The district court found that the comp laint did not expressly state a claim for vicarious liability. See Aplt. App. at 193.